Legal setback for Ontario aboriginals taken from their families during the “Sixties Scoop”

The federal government has won its appeal in Divisional Court against a class-action lawsuit on behalf of 16,000 aboriginal children taken from reserves in Ontario in what’s known as the “Sixties Scoop.”

The federal government has won its appeal in Divisional Court against a class-action lawsuit on behalf of 16,000 aboriginal children taken from reserves in Ontario in what’s known as the “Sixties Scoop.”

The decision is seen as a major setback for aboriginal plaintiffs, now adults, who allege Ottawa stripped them of their cultural identity by sending them off as children to non-aboriginal homes. Many told stories of abuse, alienation and isolation in foster and adoptive homes in Canada and the U.S.

“Canada’s strategy is to get us out of the way,” lead plaintiff Marcia Brown, 48, said Wednesday from Beaverhouse First Nation in northeastern Ontario. “It’s an injustice. What I truly feel is that this isn’t a fair system for First Nations’ people. ”

Brown, an Ojibwa who was taken when she was 4, says her non-aboriginal mother tried to wash away her “dirty brown colour” and burned a stuffed tiger full of “Indian bugs.”

Cooper, who represents the plaintiffs with fellow lawyer Jeffery Wilson, points out the residential schools case dragged on for years before a historic settlement was reached in 2005 for victims of a Canadian system that took hundreds of thousands of children from reserves and sent them to church-run schools.

Ottawa has deep pockets, says Cooper, and its strategy is to drag out legal proceedings at great cost in taxpayer dollars.

The federal government is responsible for aboriginal people. Therefore, the class action suit was brought against the attorney general of Canada, although children were removed by provincial authorities.

The ruling orders lead plaintiffs Brown and Robert Commanda to pay $25,000 in costs and stipulates that any new motion for certification of the class action lawsuit must be brought before a different judge other than Superior Court Justice Paul Perell. He granted conditional certification for the class action suit — which Ottawa then appealed.

“The worst part is they ordered (Brown and Commanda) to pay. It’s very sad,” said Cooper, emphasizing the decision was totally at the court’s discretion. “This class action suit was not for the personal benefit of either Brown or Commanda but for everybody.”

Said Brown: “I personally don’t have that kind of money. They are just trying to discourage everybody from challenging the federal government.”

Cooper and Wilson will take their fee from any final judgment.

“We were surprised and very disappointed over (Perell’s exclusion),” said Cooper. “He was just doing what he was supposed to do.”

Perell certified the class action case with the provision the plaintiffs file an amended statement of claim. But the Divisional Court said he “appears to have preapproved the amendments necessary to satisfy him” there were indeed grounds for class action. That was seen as unfair to the federal government.

The Divisonal Court ruling has caused quite a stir and, in the careful language of the law, whipped up controversy.

An experienced class action lawyer, Baert said “appropriate case management involves the wide discretion of a motions judge (Perell) to advance the proceedings and to avoid the potentially prohibitive costs and excessive delays associated with certifying a class proceeding.

“In the circumstances, Perell was merely exercising this discretion to modify the proposed class proceeding.”

The setback means that Cooper and Wilson must now win two battles in order to get back to court on their class action suit. They must first win the right to appeal the ruling by the Divisional Court and then, if victorious, win the appeal itself.

If they don’t, Cooper says the setback would put them back three years, almost back to the beginning.

It’s ironic, he says, given that “copycat” class action suits on behalf of “Sixties Scoop” children are in the works in B.C., Alberta and New Brunswick.

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